*1 196 The case is therefore reversed and remanded to be retried only being Ferguson
legal Hyde, had on defendant. CC., service con- cur. foregoing PEE opinion by Sturgis, CUEIAM: The C., adopted judges
as of the court. All the concur. Henry of Missouri at Relation Relator, J. Horspool, State George F. and Simon G. Nipper, Haid, Dee William Becker Judges (2d) Appeals. the St. Louis Court S. W. 923. One, 6, Division December 1933. Robinson,
E. H. A. E. L. Allen, Gardner and <& Moser Marsalek for relator,
198'
Campbell Allison, Joseph A. Falsone and Orvál C. Sutter re- spondents.
.199 *4 court, by in FERGUSON, original proceeding this C. This is an St. Court certiorari, judgment oí the Louis to review the (2d) 687, S. Horspool, 49 W. Forsythe in Appeals the case of rulings of this ground on is in with certain that same the con- by Horspool in Forsythe, employed carpenter court. a was engaged County and while St. dwelling struction of a house in Louis aof injured in floorboards platform that work was when Forsythe fell. standing scaffold which was “tilted” he $3,500. judgment for brought damages an action for recovered herein) the St. Upon appeal by Horspool (relator defendant cir- judgment Appeals affirmed the Louis Court of that court (2d) 401. That court, Forsythe 28 W. cuit v. Horspool, S. Haid, Horspool v. (State ex rel. was reviewed certiorari here on Court of (2d) 611) quashed. The 327, 40 Mo. S. W. the record subject of this promulgated then which judgment of the again affirming proceeding (49 (2d) 687) W. court. circuit opinions foregoing in the is set pleadings
The substance out Court of following opinions of the and the in both facts are stated Appeals:
“The evidence discloses injuries received his on the date petition. mentioned He a carpenter, working was on a building, and engaged placing building. on said While placing so shingles, these he working upon platform a or a scaf- engaged fold, carpenter. at time with another building The thirty-two about long, feet and the approximately scaffold extended along length building. entire The scaffold was formed putting up uprights, certain eighteen about feet high, few feet from building, two them. between The distance between the uprights approximately Boards, ‘lookouts,’ ten feet. called ex- tended from upright each building. lookouts, to the On these boards laid depth to form each or scaffold. up- The rights and put lookouts up under the order and direction of de- fendant’s foreman. Plaintiff put and his coworkers the boards on lookouts. The was made of two boards about sixteen length feet in thick, lying upon lookouts, two inches with a eight third similar long board about lying top feet of the other middle space. Each sixteen-foot board extended from each end of to near the center of the scaffold. *5 space top long the third put board was on of other middle the boards. A prior short time plaintiff’s to injury, he was at one end of the other, his working and coworker at the towards each other. working, While were thus shingles bundles of passed were out placed upon platform, of a window thereof, this about the middle by When employees. other and his eoworker came to the
201 were, shingles scaffold, where near the the middle of middle, way in them, platform gave the shingles the between the ground. ... causing fall to the plaintiff to weigh shingles to from of
“One of these bundles pounds. ... sixteen-penny nail . . one . constructing
“In the slipping. keep it from board to in of middle énd placed each platform itself was suf- is to effect “There evidence was sufficient It intended. it was for which purposes ficient for three or four men, when some but weight these two of to hold the thereon, by plaintiff and not were of extra bundles load for the much of a defendant, it was too coworker, but by ...” scaffold hold. to it inferentially
While appeared from the facts in the statement of definitely first it is in stated the second of the Court of Appeals that the 16-foot boards were not nailed or fastened to the lookouts at the any ends or nailed point or fastened lookouts at to merely but upon laid or across the lookouts. plaintiff’s again
At the close of case at close whole requested case defendant in a demurrer instruction the nature of evidence, light to the which In the trial court refused. al., Horspool facts ex
above this court held in State v. Haid ét rel. supra, ruling opinion, that the first Appeals, Court of its jury “that a case was with”’ decisions made for the discussing this court certain cases cited. there evidence, in the supra, opinion, which was out in and restated set the first opinion, second said: this.court
“That the scaffold was negligently constructed, according to.the evidence set out in the opinion, cannot admit doubt. The building thirty-two long; feet a scaffold was by setting formed uprights eighteen about high feet a few building. feet from the Boards called ‘lookouts’ extended from uprights those building. to the Thus there uprights, were four at one each end and between, presumably two as way, equal safest distances, at eight about ten feet inches apart) thirty-two to cover the feet. That uprights these lookouts by which building may attached to the were secure we infer, nothing is said contrary. Upon these lookouts were placed boards sixteen long coming feet from each meeting end and the middle. Each supported board would be resting two lookouts one at end of the extending five feet or more beyond other, middle where the boards met. These boards werejtwo thickness; inches in their width is stated. It is mani- fest that a sufficient end of inside either of these up boards would tend to tilt it unless it were- down fastened at the *6 202 opin- in the Nothing said building.
outer end corner is at the prevent end to any fastening ion as to which down would hold causing plain- up Evidently tipping up. that both did tilt one or by plaintiff placed tiff to fall. These were there boards they placed along that Upon colaborer. them the middle of way to all the extend eight-foot Necessarily not plank. it would plain- The planks. 16-foot supported both which inside lookouts 16- by a others plank to the 8-foot tiff testified that he fastened that nails that these said penny slipping.’ It is not keep nail ‘to it from up, and tipping from keep have other would the effect to eight board, inside nothing in indicate that there is the evidence to by constructed negligently long, Thus the scaffold slipped. feet boards, failure by or the 16-foot the ends of failure to fasten down tipping that length 'prevent sufficient board of to have the middle by reason it fell that escaping conclusion is up. There no material whether makes difference And it no those defects. conjunction alone or in by plaintiff scaffold built selected and the duty of charged with the plaintiff with a fellow-servant. The There is no com- his work. was a That the scaffold. make the hand to not at material and sufficient plaint proper that know how not and could not know relator did The scaffold secure. secure, and was not make it it, failed to plaintiff had constructed insecurity. responsible for that ‘‘ opinion says The a witness for the defendant testified that properly had not been constructed because the boards were not properly only nailed to the is lookouts reasonable be inference to drawn from plaintiff the evidence for the recited opinion. lookouts, It was the which scaffold boards fell—not the ruling upright. Appeals nor the The that a case was of the Court jury Ransom, v. 234 c. made for the is with Williams Mo. l. 209-211, 69, 349; Dunnavant, 136 W. 198 Mo. c. 95 S. S. Forbes l. 6 934; 1148, (2d) W. 319 l. c. 886. Gillespie, Guthrie v. Mo. W. shingles placed is said further in the that bundles of were It weigh 125 scaffold; shingles from upon the that those pounds each; platform was sufficient that there was evidence that the men, three or four extra but when to hold the of the two plaintiff co shingles thereon, by not and his placed were bundles of much of a load for the workers, by defendant, was too but it Court of upon which the theory is the to hold. This scaffold enough, but was was safe the scaffold the conclusion that reached coworker, by but some other unsafe, and his plaintiff made not employee.
“Nothing is stated why the evidence as to shingles those extra placed were there. The reasonable inference is for the use of there and his eoworker because standing shingles nailing on the scaffold It roof. in- anywhere necessary dicated those were not their *7 purpose. In building the scaffold for their support plaintiff the charged duty and his coworker with the were of that one would their purpose naturally serve under all conditions which would shingles passed arise. The were out of a window the while men were eyes. right placed at work and their No is before evidence mentioned them, plaintiff and not to indicate that his coworker did see or did not they being they know is placed were there. The natural inference that shingles passed did know the would and were out of window be the platform. They placed upon must known the the have that placed use, shingles be somewhere for would have to their and it any place put intimated other to not that there them. shingles by Appeals
“The that a the Court of the were inference tip up added load to make the does not relieve the sufficient duty that be plaintiff anticipate his to the load would increased of way the to exactly was, in the it and to construct scaffold meet that contingency. ‘‘ defendant, causing shingles hand, by On the other needed platform, in could by plaintiff placed the work to be out insecure as to hold anticipated not that the scaffold was so not have W. Co., 670-671, 307 c. S. up. Candy Mo. them l. [Hunter ” 800.] 689), (49 (2d) 687, now before us for opinion W. its last in review, to the statement of the evidence the Court adds of out, supra, have set opinion, in and which we ease made its first following: neither plaintiff discloses that “The of evidence on being placed any knowledge shingles of these had he nor coworker roof, working on They were located near the scaffold. they did they and that could not see that and the evidence discloses evi- being the scaffold. The shingles placed on were know that not by weight had been tested that the scaffold further discloses dence and substantial it was sufficient that men to show two or three Plaintiff necessarily expected thereon. hold all that to being anything know about did that he not stated fallen, never have known, the scaffold for, if he had thereon, placed the had shingles. Some one moved the he would have for knowledge without the upstairs window through shingles on it that also discloses coworker, the evidence plaintiff or his Plaintiff done. would be that this expect anticipate or they did not this to had use all boards used that the also testified platform.” thereby this observation makes opinion In this connection the the evidence demurrer again defendant’s effect holds that a case made plaintiff and that by court
properly overruled the trial jury. for the
, Supreme quashing record, Court ... “The our that held facts, by original opinion, plaintiff as disclosed our showed that charged duty scaffold, constructing and that safe Therefore, opinion not he had done so. our was in conflict with cer- however, Supreme observed, our It tain decisions of Court. will be quashing that, Supreme of our Court court, nothing evidence, this is stated that there was as shown it original opinion, proper material was our no sufficient at hand to make the scaffold secure. The further states is mentioned indicate that and his coworker no evidence being shingles, did know not see these did *8 inadvertently placed there. This evidence was omitted from our original opinion. But, in fact the record shows view of the that time, facts, at this and plaintiff these we it fair to them deem state facts, in view of does show these additional the fact that the record in quashing original this we think that record the reasons have case been obviated.”
However, the essential and controlling
upon
facts
which our con
clusion in State
Horspool
ex rel.
Haid,
v.
supra,
is based remain
by
unaffected
the additional evidence set out in this
opinion
last
of
the Court of
making the same
principles
rules and
of law
opinion
declared in our former
applicable, and
opinion
therefore this
of
Appeals,
the Court of
in
only
conflict not
with the decisions of
this court cited in our
former
but also with our ruling there
in. In
ex
Horspool
State
rel.
pointed
v. Haid we
out that the first
opinion of the
of Appeals
Court
inis
ruling
with our
in
Ransom,
55,
v.
Williams
Mo.
69,
l. c.
to o tn look- to the fastened or being nailed without the lookouts across “It manifest inner lookouts. or to ends at the outer outs these boards either the inside end weight upon a sufficient up.” tilt it tend to Appeals says last of the plaintiff The Court testified they platform.” “that the boards used were all had to use for this used, Even with the material two so sixteen-foot boards eight-foot heavy boards board, perfectly it is obvious that had these securely been nailed to the lookouts at outer ends would not tipped have tilted or when the concentrated near the In with platform. of the the material. middle used and thereon, work view of the to be of the done exercise ordinary required long slightest precaution care or tilting by doing against plat- so it is manifest the be made secure case, supra, been safe. Williams form could have made by coworker, both plaintiff experienced used and his car- scaffold placing board, upon was made one end of the penters, securely working, which while on a cross-timber stood nailed resting rung upon a ladder other end which building. against slipped so as to lean a wall ladder The injuries sustaining fell com- floor thrown to the plained of. This court said: “That the scaffold could have been made although safe a ladder used as a of the scaffold is apparent even to the unlearned in carpenter’s work.Braces the sides of this lad- der, floor, toenailed to the would have prevented moving the ladder
north A strip or south. nailed on the floor at bottom of the ladder prevented would have it from slipping on the floor. With pre- these ' *9 cautions require it not does expert to see the safety absolute of the scaffold.”
The cases hold that a servant cannot recover for injury sustained falling the aof scaffold constructed by him for his own use when the, by the exercise of ordinary care, with hand, materials at. -the scaffold could have been made secure and injury safe and his directly and proximately due to his own failure to exercise eare- .such nails, opinion Neither of.the Appeals Court of indicates that or fasten- ings of sufficient strength size and securely to fasten the ends of the long boards and secure them the thereby to lookouts and eliminate very the danger tilting obvious of tipping when applied to the platform middle of the were not at hand and available plaintiff to and his constructing coworker in platform. the We noted in opinion our in the former proceeding, certiorari any that respondents opinion first did not indicate evidence the effect that any there was other place, than this platform, upon which the
shingles conveniently placed could be plaintiff for use the of and nis fellow carpenter shingles or that .it intended supplied that the be;‘ place at some other inor other We said: reason some manner. The able inference is (the shingles) placed that they (on were there platform) plaintiff they for use of and coworker his because standing nailing were on shingles the scaffold is the roof. It not anywhere shingles necessary indicated that those not their were for purpose. building support for and plaintiff the scaffold their charged duty building were would coworker with the of one that purpose naturally under all conditions which arise. serve their shingles . is know . . The natural inference did would be They that placed upon platform. . '. must have known . use, is shingles somewhere for their and it placed would have to be any put The place other them.” intimated that there was not foregoing were which the inferences conclusions same facts of Appeals of the Court and are opinion in the last appear based out way additional evidence set any altered or affected not showing re anything appear opinion in either that therein nor does shingles placed upon the employees, who lator, or his his foreman constructing the plaintiff that have known platform, or could knew make it secure.” “failed to platform, had Respondent’s last opinion, in the statement of evidence, additional says plaintiff that testified could he not see and did not know that being shingles placed were on the scaffold “if known, he had scaffold never would have fallen for he would have moved shingles.” Our former observes shingles that: “The passed out while of the window the men were at work right eyes. before their No evidence is plaintiff mentioned that Upon coworker not see them.” reading did a of it will think, appear, we that this comment does reasoning not influence the nor is the circumstance up- mentioned one of the facts court, on which the conclusion which precedes it and declares holding that the Court case was made jury prior conflicts with our decisions cited, there This based. stated) (measurement ; the width of one board it ran straight across the front and his co- opposite worker worked from ends toward the middle of placed. point When arrived at where the long according fell. But full outer ends of the credence to it plaintiff’s or conclusion nevertheless does not serve to statement *10 exculpate negligence leaving mitigate plaintiff’s placing upon the lookouts. The state- loose and unsecured platform boards shingles had he seen them at have removed ment he would own realization emphasizes place but which, dangerous manner in he and his coworker had constructed the platform. anything respondent’s
We do not discover in the facts added last which allows a different conclusion from that stated-in our former on certiorari and we must hold therefore that this holding Appeals, second of the Court of a case was jury, made is also our decisions cited our opinion. Horspool Haid, former v. ex rel. supra.] [State quashed. Sturgis, G., dissents; Hyde, G., The record is concurs. foregoing opinion by FergusoN, C.,
PER CURIAM: The judges All adopted opinion of the court. concur. as the Daggett, Widow, In the Matter and David McWhirter Jewel Leigh Son, Dependents Daggett, Minor Daggett, Lester De City Corpora Company, Steel ceased, a Structural Kansas Indemnity Company, Corporation, Appellants. tion, Globe (2d)W. 1036. 6, One, 1933. Division December